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REMARKS AND DOCUMENTS 



CONCERNING 



THE LOCATION 



BOSTON AND PROVIDENCE RAIL-ROAD 



THKOUGH THE 



BURYING GROUND IN EAST ATTLEBOROUGH. 



TO WHICH ARE ADDED, 



THE STATUTES FOR THE PROTECTfON OF THE SEPULCHRES OF THE 

DEAD, WITH REMARKS ON SOME OF THE POWERS AND 

RIGHTS OF CORPORATIONS IN THIS STATE. 



BY A FREEMAN OF MASSACHUSETTS. 



And the field of Ephron, which was in Machpelah, which was before Mature, the field and 
the cave which was therein, and all the trees that were in the field, that were in all the bor- 
ders round about, were made sure * * * * unto Abraham, for a possesaion of a Buryinq 
PLACE.-^Gen. xxiii. 17, 20. 



3 ^ e c i. . 



BOSTON : 

PRINTED BY LIGHT & HORTON, 
Lyceum Depository, Cornhill. 

1834. 



T 



1^ 



• fc-'i&Hz 



REMARKS, &c. 



It is probably known to the most of those who will read 
this pamphlet, that the Boston and Providence Rail Road 
was recently located through the Burying Ground in East 
Attleborough, contrary to the almost unanimous wishes of 
the Proprietors. In June, 1831, an Act was passed estab- 
lishing the Boston and Providence Rail Road Corporation, 
with the usual powers and privileges. Under this Act, the 
Corporation claimed the right to construct the road through 
that place, notwithstanding the statute for the protection 
of the ' Sepulchres of the Dead.' After considerable 
delay and various remonstrances and proceedings on the 
part of the Proprietors, the corporation proceeded on the 
last Monday in June to construct the road through the 
Burying Ground, and to remove the remains of the dead by 
a sort o^ forced consent of the relatives.* 

The line of the road passed obliquely through the 
ground, cutting it into two irregular and unequal parts. 
In the course of the excavations (about 30 feet in width) 
about 150 bodies, or their remains, were removed, or rather 
attempted to be removed, for many of them were so much 
decayed that nothing but a few bones could be found. 
Such a removal is a mere mockery. 

* They gave notice, that, unless the kindred would consent to the removal 
of their dead, they should pull up the grave-stones and construct the road 
over the graves ! This was freedom of choice with a vengeance ! 



This Burying Ground was laid out soon after the incor- 
poration of the Parish, Oct. 16. 1744, about 90 years ago, 
for the use, as it has always been understood, of all resid- 
ing within the territorial limits of the Parish. Additions 
have been made to it since that time ; and it was supposed 
to contain, when this outrage was committed upon it, about 
twelve hundred graves. Here are the ashes of many of 
the fathers of the town. Here 'sleeps the faithful pastor* 
and his pious flock.' Here are the kindred of almost every 
family in the Parish. In this place in the course of time, 
several generations have been gathered to their fathers. It 
was their own chosen place of burial — selected as the spot 
where they desired to repose ; and here, by every principle 
of gratitude and reverence to their memories, their ashes 
ought to have been permitted to rest, undisturbed by the 
speculations of the living. But a generation has occQpied 
their places, who know not the fathers ; a generation, who 
are influenced in their actions by feelings more selfish than 
those of the early settlers of the place who subdued the 
soil and established the institutions which we are now so 
ungratefully enjoying. That sacred spot contained the 
remains of many of those (ever to be honored) who toiled 
laboriously in the arduous struggles of the Revolution, and 
whose hard services to their country ought to be requited 
in some other way than by thus trampling upon the place 
of their repose. ' Oh insane thirst for gold, to what deeds 
wilt thou not lead thy votaries ! ' The grave has always 
been considered a Sanctuary, where the ashes of the dead 
might rest in peace till the last trumpet should awake them 
to life — as a refuge, where the weary might rest, and the 
wicked should cease from troubling. Peace and rest are 
always associated with the thoughts of the grave, — a place, 
where the business of the world ought never to intrude. 
Every disturbance of its silent repose is a painful shock to 
the feelings of surviving kindred. In their view the re- 

* Rev, Peter Thatcher, the first miuister of the East Parish. 



mains of the dead are sacred relics ; he, who disturbs 
them, offers violence to the best feelings and associations 
of mankind ; and no one, whose heart is not hardened, — 
whose natural sympathies are not blunted or destroyed, in 
the pursuit of wealth, would ever attempt it. 

Contemplate the scene for a moment. Kindred and 
friends are called, after a long separation, to witness the 
disinterment of the remains of the departed, — whose 
memory is thus recalled most vividly to mind — painful 
scenes of former separation are brought fresh to the recol- 
lection, — and in a manner most aggravating to the feelings. 
It brings to sight the mouldered remains of tho-^e who 
were once associated with us, ir. life, in the most endearing 
relations. 

Tearing up the monuments erected in memory of the 
dead — disinterring their bones — scattering their dust to the 
winds of heaven — or else exposing their decaying and 
mutilated forms to the gaze of idle curiosity, is a scene to 
which the public feeling ought never to be subjected, — it 
hardens and degrades it. 

The repository of tlie dead, without the ceremony of 
consecration, becomes sacred — sacred and inviolable by 
the common consent of mankind. To convert the spot, 
which has been once appropriated to the burial of the 
dead, into a Common,* or into a place of business and 
money-making, is doing violence to the feelings, and shows 
but little respect to the associations which influence the 
human mind. It is |)ror;inin<j a place, which, in the view 
of the living, has been rcsidcred sacred by having received 
the relics of our frienc's and kindred — which has been set 
apart and devoted to a most solemn purpose, supported, as 
it is, by the religious sontim'-nts of our nature. The very 
spot which encloses the remains of a friend becomes con- 



* It has been currently rrpoi 'cd, th;it it is tlie wish of certain individunls, 
who have favored the pas-^age of tiio lond lhrouf>;h that place, to convert the 
eiist side of the ancient Buryin;^ iiio- ii ! into a Lumber-yard! 
*1 



seciated in our memory ; and to leave it forever undisturbed, 
is the most consonant to our feelings. AVe naturally asso- 
ciate the memory of the living with the relics of the dead; 
and these, with the spots where they are buried and with 
the dust which covers them. In the eye of friendship how 
sacred is the grave which receives the remains of the de- 
parted I How strong is our desire to preserve their repose 
— to protect them from violence and insult! All these 
associations ought to be regarded, even cherished, from 
the moral influence which they exert on the living by re- 
fining and softening the feelings. Instead of diminishing 
this feeling of respect for the dead, which has so generally 
prevailed, I would render it deeper, stronger and more 
lasting. I would have it cultivated in all suitable ways, as 
a means of improving tiie moral character. If you blunt 
or destroy these sensibilities, you injure the better part of 
our nature. Those who cherish, with the most enduring 
afiecti.' n, the memory of their departed friends, cherish 
also, with the most fidelity, the ground which contains their 
relics. It is indeed, the same principle of our nature 
(founded on the laws of association) which connects our 
ideas with the external world, the past with the present, 
and the dead with the objects which belonged to them 
while living. 

These feelings, deeply seated as they are in tlie minds of 
the great majority of m.mkind, are entitled to respect from 
all, and to the guardiiuiship of the laws. Some individuals 
there are, we know, who profess to have no feeling on the 
subject ; but we hope tliey will not insist on reducing 
others to their own level. But if you succeed in eradica- 
ting this sentiment of respect for the dead, what do you do 
but brnlalize the humnn mind ? The moral depravity pro- 
duced by habitually dishonoring the dead, is illustrated by 
awful examples in the characters of a certain class of 
criminals in London, called Resurrectionists* 

* The most abandoned and hardened wretches, that have ever blackened 
the calendars of crime, were the ' body snatcheis' or 'ilesurrectionists,' of 



All ages and all nations have united in paying respect to 
the dead, in protecting their remains, and in guarding, as 
sacred and inviolable, the places where they are deposited. 
So universal and so strong is tiiis sentiment, that we must 
believe it natural ; there is no exception to it even in the 
savage breast. A striking trait in the character of the 
North American Indians, is tlieir strong attachment to the 
' graves of their fathers.'* This sentiment is often alluded 
to in the eloquence of their orators. In fine, the annals of 
all nations bear testimony to the honors bestowed on the 
dead, and the scrupulous care with which they watched 
over and preserved their remains and the places of their 
burial. 

Hitherto the grave has been considered n place of rest — 
sacred and inviolable — devoted to the solemn purpose of 
receiving in trust the remains of mortality — a place where 
this fleshly tabernacle of the soul, the 'human form divine,' 
might fulfil, undisturbed by the hands of thaliving, the great 
decree of its creator, and return to its original elements. 
There is something, even in the outward form of man, 
which ought to inspire awe and respect. It has been the 
habitation of the human soul with all its great and glorious 
capacities ; and tiie impress of its divine nature is still left 
on th.e form of the dead. It is the curious and wonderful 
workmanship of God ; his most perfect and glorioles work ; 



London, who were eiij^acred in the cruel traffic of robbiiis; the grave to supply 
subjects for dissecllon — and of whom notices havje been given in the periodi- 
cals of the day. One of the number, who was executed a few years since, 
the infamous Burke, had become so hardened in the liorrible pursuit, that he 
destroyed the lives of many individuals for the purpose of selling their bodies 
to the surgeons of London. 

* In Drake's Book of the Indians, the third edition of which has been 
recently published, will be found much to illustrate the Indian character — a 
work in which the author, after the most extensive research and the most 
commendable perseverance, lias collected probably almost everything which 
can be discovered respecting the individual lives of that interesting and un- 
fortunate race of men. In the work will be found many specimens of their 
oratory. 



8 

and should always receive from his creatures that respect 
which the dignity of its nature demands. 

Over the entrance to every Burying Ground should be 
inscribed, in capital*, ' Let the Dead Rest,' for it is the 
' place of rest.' * In the consecrated burial grounds in 
England, it was anciently the custom to inscribe on the 
grave-stones the touching and expressive words, ' Requi- 
escat in pace,'f which must have made a strong appeal to 
the heart of any who might have meditated violence to the 
remains beneath. Even to this day, the first words, which 
meet the eye, on almost every stone monument in our 
cemeteries, are, ' Sacred to the Memory,' that is, consecra- 
ted, devoted to the holy purpose of preserving from dis- 
honor and neglect the relics which repose beneath it. 

But, notwithstanding the earnest remonstrance of the 
Proprietors, and the use of every possilTle means of dis- 
suasion ; and in opposition to the voice of public opinion 
and the common sentiments of humanity, the road has been 
constructed througli the Burying Ground ! And thus this 
outrage has been committed, in contempt of the authority 
of the selectmen, I in defiance of public opinion, and in vio- 
lation, as we believe, of the laws of the land. 

Has it come to this? Is there no spot in this wide world 
where the bones of the dead can rest in peace ? Can they 
spare us no space of earth which shall be privileged from 
intrusion ; where we can feel an assurance that the hand 
of violence or cupidity shall not disturb the ashes of our 
kindred ? Will it be permitted, in a community of humane 
feelings, that a body of men, strangers to the people in the 
vicinity, and having no interest or sympathy with them, 



* Cemetery is derive J from a Greek word, signifying, ' a place of sleep or 
rest.' 

t Which may be translated, ' Let the dead rest in peace.' 

t Application was made to the authorities of the town for license to 
remove, but it was refused. The further consideration of the question was 
postponed till the last Monday of August. 



may trample with impunity on the graves of our fathers? 
and all this, to gratify the pride or caprice, and promote 
the interest of a wealthy corporation ! The first rail-road 
in Massachusetts has its foundation on the ashes of the 
dead ! 

This is not the worst. A few of our own neighbors have 
been concerned in tiie transaction. This was the ' unkind- 
est cut of all.' Will it be belie\ed by succeeding genera- 
tions, that men (hitherto regarded as men of feelino) could 
be found in this town, who, from selfish or worse motives, 
were willing to lend their influence and combine with a 
foreign corporation to disturb the repose of the grave ? 
Yet such is the fact ! * 

We know there is a heartless philosophy embraced by 
some at the present day, which disregards everything but 
the physical comforts and wants of man, and considers 
w^ealth as the chief good of life. It would root out every 
principle and feeling which does not contribute directly to 
some object of Utility ; and would thus destroy the nobler 
part of our nature. Its tendency is to subdue everything 
like sentiment, and especially our 'symj^athy with the 
dead,' because, tried by the test of this modern philoso- 
phy, it has nothing to do with ' the funds,' and is not con- 
vertible into cash ! This narrow system of utility is the 
greatest bane to the moral and intellectual improvement (^ 
the nation. It sacrifices all the higlier and nobler con- 
siderations of life to the gratification of the mere animal 
wants of the species. 

Wealth is becoming the idol of the people of this coun- 
try, and the pursuit of it is absorbing all their best time 
and talents. There is already too much wealth in the 
country for the good of the people, and the safety of our 



* I have refrained from goinp Into further particulais, for Ihe sake of 
sparing the feelings and the reputation of the individuals concerned in the 
transaction; but if circumslances shall require it, the whole history of the 
proceedings will be made public. 



10. 

civil institutions. It is only a weight to drag the country 
down to the gulf of national ruin, to luxury, immorality, 
and final subjection to tyranny. With the superabundance 
of riches will come the enervating effects of idleness and 
its kindred vices ; and with the virtue of the people will 
pass away their love of freedom. National ruin will be 
the natural consequence. Such has been the experience 
of all other nations in past ages. 

Efforts have been made within a few years by the intelli- 
gent and benevolent of our metropolis to create a higher 
regard for the repositories of the dead, or rather, to 
strengthen and refine the public sentiment on the subject, 
and thus to counteract this tendency of the age. 

The result has been the establishment of the beautiful 
cemetery at Mount Auburn, an undertaking well calculated 
to answer the end designed. J\o effort of the day is fitted 
to produce so great and salutary a moral effect on the 
character of the city, and eventually on that of the whole 
community, as the cemetery at Mount Auburn. It will 
diffuse in the community, a taste for ornamenting burial 
grounds; better judgment in the erection of funeral monu- 
ments, and in the sentiment and style of the inscriptions, 
and will awaken the public from a too general neglect of 
the external appearance of the repositories of the dead. 
, We cannot forbear extracting here a few passages from 
the Address,* delivered at the consecration of this cemetery. 



* By the Hon. Judge Story, a gentleman, whose eminent success in juris- 
prudence has not been able to eclipse the splendor of his literary acquire- 
ments. He is an oi'nanient to the country whose highest tribunal he adorns 
and dignifies. Though his office enjoys but little of that popularity which is 
attended with the ' huzzas of the crowd,' and that dazzling admiration which 
is bestowed upon the successful politician, yet his judicial fame, once estab- 
ished, is more permanent ; it passes not away with the generation in which 
it originated, but is identified with the great principles which his labors have 
contributed to illustrate or establish, and thus becomes the inheritance of 
after-ages. 

His address at the consecration of Mount Auburn is replete with eloquent 
language and beautiful sentiment, and affords a pleasing proof, that the 



11 

' The patriarchal language of four thousand years ago is 
precisely that, to which we would now give utterance. 
We are " strangers and sojourners " here. We have need 
of " a possession of a burying-place, that we may bury our 
dead out of our sight." Let us have " the field, and the 
cave which is therein ; and all the trees, that are in the 
field, and that are in the borders round about;" and let 
them "be made sure for a possession of a burying place." 

' It is the duty of the living thus to provide for the dead. 
It is not a mere office of pious regard for others ; but it 
comes home to our own bosoms, as those who are soon to 
enter upon the common inheritance. 

' If there are any feelings of our nature, not bounded by 
earth, and yet stopping short of the skies, which are more 
strong and more universal than all others, they will be 
found in our solicitude as to the time and place and manner 
of our death ; in the desire to die in the arms of our 
friends ; to have the last sad offices to our remains per- 
formed by their affection ; to repose in the land of our 
nativity; to be gathered to the sepulchres of our fathers. 
It is almost impossible for us to feel, nay, even to feign, 
indifference on such a subject. 

' I have spoken but of feelings and associations common 
to all ages, and all generations of men — to the rude and 
the polished — to the barbarian and the civilized — to the 
bond and the free — to the inhabitant of the dreary forests 
of the north, and the sultry regions of the south — to the 
worshipper of the sun, and the worshipper of idols — lo the 
Heathen, dwelling in the darkness of his cold mythology, 
and to the christian, rejoicing in the light of the true 
God. Every where we trace them in tlie characteristic 
remains of the most distant ages and nations, and as far 
back as human history carries its traditionary outlines.'' 

author preserves his feelings as a poet, and his taste as a scholar, amid tiie 
arduous labors of his exalted office. 



12 

Speaking of the care bestowed by the nations of anti- 
quity on their places of burial, he says, 

'The Romans, faithful to the example of Greece, erected 
their monuments to the dead in the suburbs of the eternal 
city, (as they proudly denominated it,) on the sides of their 
spacious roads, in the midst of trees and ornamental walks, 
and ever-varying flowers. The Appian way was crowded 
with columns, and obelisks, and cenotaphs to the memory 
of her heroes and sages ; and, at every turn, the short but 
touching inscription met the eye, — Siste Viator, — Pause 
Traveller, — inviting at once to sympathy and thoughtful- 
ness. Even the humblest Roman could read on the hum- 
blest gravestone the kind offering — ' May the earth lie 
lightly on these remains ! ' And the Moslem Successors of 
the emperors, indifterent as they may be to the ordinary 
exhibitions of the fine arts, place their burying-grounds in 
rural retreats, and embellish them with studious taste as a 
religious duty. The cypress is planted at the head and 
foot of every grave, and waves with a mournful solemnity 
over it. These devoted grounds possess an inviolable 
sanctity. The ravages of war never reach them ; and 
victory and defeat equally respect the limits of their domain. 
So that it has been remarked, with equal truth and beauty, 
that while the cities of the living aie subject to all the 
desolations and vicissitudes incident to human affairs, the 
cities of the dead enjoy an undisturbed repose, without 
even the shadow of change.' 

We must conclude these remarks with the following 
extracts from an article, in the North American Review, 
which contains sentiments appropriate to the subject. It 
is presumed to be the production of the accomplished 
scholar under whose auspices the work is now so ably and 
honorably conducted. 

* Respect for the Dead. — There is no feeling in our 
nature stronger or more universal than that which insists 
upon respect for the dead. The savage shows a kindness 



13 

and reverence to the dead, which he never pays the living; 
and enliijhtened man ranks it among the most sacred of his 
duties, to offer the last sacrifice of affection at the grave. 
If tlie belief prevailed now, as in ancient days, that the 
spirits of the unburied suffered for the neglect of their 
friends, this feeling might be more easily accounted for ; 
but it does not seem to partake of superstition ; it is rather 
sentiment, enlightened, just and manly sentiment, influenc- 
ing not only the intelligent, but many besides, who in gen- 
eral seem to be strangers to strong and delicate feelings. 
The light-hearted soldier, at the grave of his comrade, 
feels a heaviness which makes him a better man for the 
time ; the rough seaman leans thoughtfully over the side of 
his vessel, till the waters which the plunge of the corpse 
has broken, are calm and unconscious again. At every 
village funeral, when the dead lies in the midst of the living 
with a fixed and calm serenity on his brow — with an un- 
searchable depth of meaning in his features, which no 
mortal eye may read — if it be only a cliild perishing in the 
day-break of its existence, whose loss will be as little felt 
in the world at large as the uithering of a garden flower — 
still he is for the time invested with the commanding 
majesty of death ; children join their hands and look 
timidly around them; old men lean upon their staves and 
ponder; though among them he seems no longer of them ; 
the air of gentle and firm reserve on his countenance gives 
the impression that he sees what we cannot see, hears what 
we cannot hear, and is already acquainted with those mys- 
teries of the future, which the living desire and yet tremble 
to know. 

JNeither does this interest in the dead cease when they 
are hidden from our eyes. It follows them to the grave, 
and makes us regard as sacred the place where we laid 
them. The burial-place is the retreat of the thoughtful ; 
the shoes of care and passion are put oft' by those who 
enter the lonely ground. And what a lion in the path is 
the public feeling, to all who would disturb the repose of 
2 



14 

the tomb ! It is easief to rifle the mansion of the livings 
than tha narrow house of the dead ; for the living can pro- 
tect themselves, and therefore are less regarded, while the 
whole moral force of a wide region is at once in arms to 
resent an insult offered to the dead. 

One reason why the home of the dead is thus sacred, is, 
that this is the place where we lose them. Up to this 
place we follow them through the changes of life and 
death ; but at the gates of the tomb, they are taken and we 
are left. We are forcibly driven back, and tlie mind loses 
itself in earnest conjectures respecting their destiny — what 
it may be, now it is tlius widely separated from ours. The 
most striking view we ever saw of the great cataract of our 
country, represented simply the waters above, and the long 
line where they lean to dash below : the rest was left to 
the imagination, which made out for itself a more profound 
impression of the grandeur of the scene, than repre- 
sentation or description by measure could possibly have 
given. Thus it is with the surface of llie ground where 
the dead are laid ; hitherto we come, but no further ; we 
see not how nor where they are gone ; this is the boundary, 
beyond which the living cLunot go, nor the dead return ; 
and it arrests and chains the imagination, like the place in 
the ocean where some gallant wreck went down. 

This will account for the universal interest which tlie 
cities of the dead ins[)ire ; but not for all the tenderness 
with which the dead are regarded. This is owing to what 
Adam Smith calls our sympathy with the dead. Where 
and what they are now, we do not know ; we therefore still 
represent them to our minds with feelings like our own. 
It seems to us as if they must be conscious when the light 
step of affection moves above, as if the stranger, rudely 
trampling above them, might disturb their profound repose. 
We are glad when we see a sunbeam on the green roof of 
their narrow mansion, as if it could light up the darkness 
below ; and if we see a tree or a flower planted above 
them^ we feel as if they must revive and rejoice in the 



15 

pledge that their memory is still treasured by some who 
loved them. We feel bound to remember them, as we 
would wish ourselves to be remembered, after we have gone 
in that narrow way where there are no traces of returning 
feet.' 



The following documents, and the principles on which we 
opposed the measure, are here embodied in a more perma- 
nent form than that in which they now exist, not only for 
the benefit of those who have an interest in the subject 
and have not had an opportunity of examining them, but 
that we may hereby make a Public Protest against the 
claim of the Corporation ; and that this case may never be 
drawn into n precedent to justify future aggressions of the 
kind, as many are inclined to justify the abuse of power by 
its use. The question ought to have been legally settled, 
that the humanity of the law might have been vindicated. 
Measures were in progress to bring the case to a judicial 
determination, — which would have been done but for a few 
unexpected obstacles in the way. The ablest legal counsel 
liad been consulted on the subject, whose opinion was 
adverse to the right of the claimants.* The fact, there- 
fore, that the case was not contested, is no evidence of our 
acquiescence in their right to do what they did. It is time 
for public attention to be called to the subject, that the ques- 
tion, who are the proprietors (in many cases) of Burying 
grounds, and the rights of the public therein, may be deter- 
mined ; and also, how far protection, by law, is designed to 
be extended to the dead in their graves. 

The following Remonstrance was sent to the Engineer 
and Agent by the Parish committee. 

* At a meeting of the Proprietors of the Burying Ground 



* The haste, with which they proceeded in the construction of the road 
after they had ascertained tliis fact, is pretty good evidence that they them- 
selves bad some doubts about their fight. 



16 

in East Attleborough, Sept. 25th, 1833, the following Reso- 
lutions were adopted : 

'Resolved, Thai a committee of seven be appointRtl to attend lo the inter- 
ests of the Proprietors of the Burying Giouiui, so I'ar as those interests may 
be affected by the contemplated route of llie Boston and Providence Raii 
Road. 

Resolved, That the Proprietors of the Grave- Yard, regard the contempla- 
ted removal of Iheir dead with feelings of deep sensibility, and earnestly 
desire their committee to use their utmost endeavors to prevent, if possil)le, 
such a violation of the Sanctuary of the grave.' 

In accordance with the above Resolutions, the commit- 
tee deem it needless to add much to what has been already 
said, in regard to the painful feelings, which such an event, 
as the removal of the dead from the present Burying 
Ground, must inevitably produce in the bosoms of surviv- 
ing friends. Burial places have been regarded by all na- 
tions and in all ages as sanctuaries, as spots privileged 
from the intrusion of the business-concerns of life, and 
consecrated to the undisturbed repose of the dead. Such 
places possess, in the view of even the most barbarous 
nations, a sort of religious sacredness ; and no considera- 
tions, short of absolute necessity, should induce the living 
to violate the sanctity of the grave. It is one of the holiest 
feelings of our nature, which prompts us lo reverence the 
places where the ashes of our kindred rest ; and such a 
feeling is entitled to respect, and should never be lightly 
regarded. 

No pecuniary damages can ever compensate for that 
injury to feeling, which the promiscuous disinterment of 
the remains of several generations, and thus bringing them 
to the view of their suiviving kindred, must necessarily 
create. Such a scene can but shock the common feelings 
of huiBanity, and must be felt as sacrilegious. In other 
cases, private property may be taken and an equivaleat 
given. But who can give an equivalent for that wounded 
sensibility which the forced removal of the dead, under 
such circumstances, must occasion ? 

The committee would, therefore, in behalf of the Pro- 
prietors, most earnestly request those who have the selec- 
tion of the route for the Rail Road, to spare, if possible, 
the violation of the sanctuaries of the dead, which the 
location of the road over our Burying Ground must neces- 
sarily produce. Even though the Corporation may have 
the legal power thus to locate the road, yet, we hope, that 



17 

power will be exercised with a due regard to the feelings 
and interests of the community. 

Very respectfully, Yours, 
Mtleborough, Sept. 23th, 1SS3. JOHN DAGGETT, Chairman.' 

The Proprietors, perceiving that the Corporation still 
persisted in their right, deemed it expedient to make the 
grievance known to the Legislature, with the hope, if not of 
thus obtaining redress in their case, at least of procuring 
some positive enactment or other legal provision for the 
prevention of such injuries in future. For this purpose, 
they presented to tiie Legislature the following 

PETITIOIV. 

To the Hon. the Senate and House of Representatives of the Commomcealth of 
Massachusetts, hi General Court assembled : 

The Petition of us, tlie subscribers, interested in the Burying Ground 
in East Attleborough, respectfully represents: 

That by authority or under color of an Act of the Legislature, 
entitled, an 'Act to Incorporate the Boston and Providence Rail Road 
Corporation,' passed the 22d day of June, A. D. 1831, the said Cor- 
poration, by their Agents, liave located their Rail Road tlirough the 
centre of the Burying Groinid aforesaid, to the great damage and 
injury of your Petitioners; that this Burying Ground was laid out in 
the year 1744, and has ever since been occupied for the purpose of 
burying the dead, and now contains, by estitnation, from ten to twelve 
hundred graves; that the said location (if persisted in) will cause the 
removal of the greatest pro[)ortion of the remains of the bodies in 
said groimd, and will leave the remainder in an indecent and unbecom- 
ing condition. And, therefore, your Petitioners pray this Honorable 
Court to inter|)ose their authority in our behalf, and prevent this great 
injmy to our interests and feelings. 

We respectfully represent, that, in our of)inion, it is wholly unneces- 
sary to locate said road in that direction ; that from the nature of the 
ground in the vitinity, which is a level plain of great extent, this grave 
yard migJjt be avoided without any material injtn-y to the use and 
improvement of said road : that a slight curve in the line of the road, 
which, in practice, would amount to no perceptible variation, would 
entirely clear this Burying Ground, and thus render it unnecessary to 
disturb the remains of the dead : That the said Act provides, that the 
said Corporation shall take no ground or materials for the use of said 
road, without paying a full compensation therefor; but that, from the 
natin-e of the case, the damages to which we are entitled are no ade- 
quate compensation for the injury caused ; the mere cost of the ground 
and of the removal of the dead, is no equivalent for disturbed peace 
and wounded sensibility. Such an injury cannot be measured by any 
pecuniary standard. Burial places have been regarded by all nations, 
*2 



18 

and in aJl ages, as consecrated ground ; and all needless exposure or dis- 
turbance of thtm, is opposed to the universal sentiment of niankiad, and 
is a violation of the most sacred feelings of the heart. Such feelings are 
entitled to respect, and to the protection of the laws. By a recent Act, 
the Legislature, guided by a due regard for the tender associations 
connected with the remains of our kindred, have seen fit to impose 
heavy penalties upon any who should presume to violate the sanctuary 
of the grave ; and have thereby expressed the feelings which the people 
of this Commonwealth entertuiii for the protection of the cemeteries 
of the dead. We have a right to expect that the feelings which dic- 
tated that Act, will be extended to us in this case. That a right tluis to 
disturb the sacred repose of the grave, on the part of said Corporation, 
could not have been contemplated by the Legislature, at the time of 
passing said Act of Incorporation; and the exercising of such a power 
under that Act, is, therefore, contrary to the true intent of the Legisla- 
ture, and to the interests and good feelings of the people of this Com- 
monwealth. We claim protection in the case as a right guaranteed to 
us by the humane principles of our revered Constitution. We, there- 
ftne, most earnestly and solemnly appeal to an enlightened and humane 
Legislature, actuated by a due regard for the feelings and peace of the 
commimity, to grant us relief from this grievance, in such a maimer and 
by such means as they in their wisdom shall deem right and proper. 

And your Petitioners further pray this Honorable Coiu't, tliat they 
would pass some Act, for the better preservation of burial places, 
especially against future grants of this kind ; and that ihey would 
establish some impartial tribunal, who shall give a hearing to both 
parties in such cases, to the end that, whenever hereafter any individual 
or corporation shall, in the location of a road or canal, come in contact 
with a burying ground, the said tribunal shall determine, on full and 
fair examination, whether the exigencies of the case require that the 
same or any part thereof should be removed. This we ask on the prin- 
ciple that, in a case which so deeply affects the feelings and interest 
of the people, as the removal of the dead from their graves, it ought 
not to be left to the sole discretion of an interested individual, or a cor- 
poration, naturally governed by self-interest alone, to judge of its neces- 
sity — that it is not just for them to determine whether the public good 
demands such a sacrifice. We respectfully ask, that all future grains 
of this kind mn.y be made subject to such a limitation. We earnestly 
protest against the granting, in futine, of the unqualified powers and 
privileges (of which we have complained) to any corporation or body 
of men in this Commonwealth. And we, therefore, humbly pray this 
Honorable Court, to adopt some measure affording a more adequate 
protection to Burying Grounds. And as in duty bound will ever 
pray, (fee. 

(Signed) JOHN DAGGETT, and 112 others. 

Atllehorough , Januanj 30tli, 1834. • 

House of Representatives, Feb. 6, 1834. 

So much of this Petition as rehites to the grievance complained of, 
is referred to the Committee on Rail Ways and Canals. Sent up for 
concurrence. 

L. S. CUSHiNG, Clerk. 



19 

In Senate, Fkbruary 7,^183i. 

Concurred, and ordered to be printed. 

CHARLES CALHOUN, Clekk. 

House of Representatives, Feb. 6, l}i34. 

So miifh of the above Petition as relates to the Preservation of 
Burying Grounds, is committed to the Committee on tlie Judiciary. 

AUest, L. S. GUSHING, Clerk. 

In accordance with the prayer of this Petition, the Judi- 
ciary committee (of whicli Tlicron Metcalf. Esq. of Ded- 
ham, was chairinan, one of tiie most learned jurists in this 
slate) very promptly reported a Bill, which passed (we 
believe, without the least objection,) into a law.* The 
feeling manifested on the subject was highly creditable to 
the member who drafted it..f 

On the petition, (as I am informed) of the Proprietors of 
Mount Auburn, the second section of the Act was added, 
which is a judicious piovision ; and at the suggestion of 
some one, a third sectipn was afterwards appended, making 
further provisions concerning the study of Anatomy, which 
seems to have no very necessary connection with the other 
parts of the 'Act. However important maybe the object 
of that section, it is not vvholly unexceptionable. The 
poor, the friendless, and the unfortunate are made the 
victims to the cause of science. I see no very good 
reason which should exclude the rich, the learned, and the 
gentleman, from sharing in the same honor, by being con- 
signed to the hands of the dissector. 

The Railway Committee, to whom the former part of the 
petition was referred, reported unfavorably to the prayer of 
the Petitioners, — on what grounds we have no means of 
knowing, as they saw fit to give no reasons for their report. 
It may be conjectured, however, tliat it was on the ground 

* See the statute, page 21. 

t The immediate author of the Bill, Mr. Ctishiug, of Newburyport, i-; a 
gentleman not more distinguished for his eloquence and his elegant scholar- 
ship, than for the excellent feelings of his heart. 



20 

that the grant was in the nature of a contract, and that, 
therefore, the Legislature had no right to interfere. That 
it was so far in the nature of a contract as to preclude 
them from interposing their authority to prevent the injury 
contemplated, may, at least, admit of a doubt. We presume, 
however, that the committee did what they thought was 
their duty. We have, therefore, no better remedy than to 
acquiesce in the decision, right or wrong. 

That the Directors of the Rail Road might have a ' cer- 
tain knowledge' of public opinion in the town, the follow- 
ing Resolutions were sent to them. 

At a town meeting held in Attleborough, April 7th 1834, 
the following resolutions were adopted. 

Resolved, That the disturbance of the Burying Ground in East Attle- 
borough is wholly unnecessary, and that it was the duty of the Rail Road 
Corporation so to have located the road as to avoid said ground, which might 
have been done without any material injury to the use and improvement of 
said road. 

Resolved, That the removal of the dead from the places where they have 
been deposited, without the consent and contrary to the wishes of surviving 
kindred and friends, (unless jmblic necessity absolutely require it,) is a 
violation of those feelings which ought to be l:eld sacred by the laws and the 
authorities of the land. 

Resolved, That the location of the Rail Road through the Burying Ground 
aforesaid, under the circumstances of the case, is a contempt of public 
opinion and an outrage upon public feeling, and deserves the indignant 
reprobation of the community. 

Resolved, That having solemnly appealed, but in vain, to the humanity 
and justice of the Legi-lature, for protection, it is the duty of all interested 
in the case to use all legal and constitutional means in their power to procure 
relief and prevent this contemplated injury to their rights. 

Resolved, That the granting, by the Legislature, of such undefined powers 
and privileges to any person or corporation, as are given in the charter of 
said Rail Road Company, (and without first requiiing a specific location of 
the intended route,) is an unjustifiable disregard of private property, and a 
violation of the rights intended to be secured by the Constitution to the 
people of this Commonwealth. 

Resolved, That a commiltee be appointed to transmit a copy of the above 
Resolutions to each of the Directors of the Boston and Providence Rail Road 
Corporation, with a request that they would so far change the location of said 
road as to avoid the Burying Ground in East Attleborough, 

Atilcbotoiigh, April 1th, 1834. 

At the last meeting of the Proprietors, (which was very 
fully attended,) held a few weeks previous to the com- 
mencement of the work, the following Resolution was 
passed. They were resolved, that, if the act should be 



21 

done, the responsibility and odium of it should rest on 
those by whom it was done ; and would do nothing which 
might be construed into acquiescence or consent, that they 
might thus avoid the appearance of being made seeming 
partakers in the outrage. 

'Resolved, That the Proprietors of the Bnryinpj Ground are still opposed 
to the passage of the Rail Ko.kI over ihe same; that they will never encour- 
age or consent to it, and that they deny the riiihl of the Corporation to con- 
struct said road over said ground, or to disturb or injure the remains of the 
dead therein deposited.' 



liAWS FOR THE PROTECTION OF BURYING GROUNDS. 



As much interest is now felt in this subject, the statutes 
are here copied, for the satisfaction of those who have not 
convenient reference to them. Burial places have been, for 
some time, under the protection »>f statute law. The first 
Act, however, in this state, since the adoption of the con- 
stitution, for the special protection of such repositories, 
was passed in the year 1815. It was en;itled, 

AN ACT to Protect the Jsepuichres of the Dead- 
Sec. 1. Be it enacted by the Senate and House of Representatives, m 
General Court assembled, and by the authority of the same, That if any 
person, not being authorised ty the Buard ot Health, or the Selectmen of 
any town in this Commonwealth, shall knowingly and wilfully dig up, re- 
move, or carrj' away, or aid and assist in digging up, removing or carrying 
away any human body, or the remains thereof, such person or persons, so of- 
fending, shall, on conviction of such offence, in Ihe Supreme Judicial Court 
of this Commonwealth, be imprisoned, iiot more than one year, or fined, not 
more than one thousand dollars, according to the nature and aggravation of 
the offence. 

Sec. 2. £e it further enacted, That if any person or persons knowingly 
and wilfully receive, conceal, or dispose of any human body, or the remains 
thereof, which shall have been dug up, removed, or canied away in the man- 
ner described in the first Section, of this Ac*, he or they shall be subject to 
the same forfeitures and penalties, as in said Section is provided, on convic- 
tion thereof in the Court aforesaid : Provided , however, That nothing in this 
Act shall be so construed as to affect the power or authoiity in the Courts 
of the United Stales, or of this Conimonweiilth, or of any person acting under 
the authority of the same, in removing or disposing of the bodies ol persons 
executed pursuant to any sentence of such Court. 

Sec. 3. Be it further enacted. That all fines, accruing under this Act, 
shall enure, one half to the informer, and one half to the town in which the 
oflfence is cominitted.' [March 2, 1815.] 



2S 

Previous lo this time, there was no necessity of special 
law, to protect the ' sepulchres of the dead.' The general 
law of humanity protected them. The humane sentiments 
of the people were a sufficient guaranty. The grave pos- 
sessed, in their minds, a religious sanctity, which no one 
presumed to violate. Around its hallowed precincts was 
drawn a consecrated circle, which guarded and insured its 
inviolability. 

I am not aware of the particular circutnstance whicii 
was the occasion of the enactment of that statute ; but, 
probably, it was some individual outrage which directed 
public attention to the subject. 

But even these penalties, severe as they are, were not 
sufficient to deter monsters from violating the sanctuary of 
the grave. Nothing can be conceived more aggravating 
to mourning relatives, who have just committed the body 
of a beloved friend to the earth, than the thought that his 
grave has been plundered by some ruthless, unfeeling 
wretch, and his remains stolen away and submitted to the 
dishonor of a dissectinji room. Several outraueous cases 
occurred in Boston, Springfield and other places, which 
are fresh in the recollections of the public. This occa- 
sioned the statute of 1831, which is as follows: 

AN ACT more eflTectunlly to protect the Sepulchres of the Dead, and to 

Legalize the Study of Analomy in certain cases. 

Sec. 1. Be it enacted bt/ the Seiiate and House of Representatives, in 
General Court assanbled, and by the authority of the same, That if any 
person, not beitij; authorised by the Board of Health, Overseers of ttie Poor, 
or Sidectmen in any lown of this Commonwealth, or by the Directors of the 
House of Industry, Overseers of ttie i'oor, or Mayor and Aldermen of the 
City of Boston, in said Commonwealth, sliall knowingly or wilfully dig up, 
remove, or convey away, or aid and assist in digging up, removing, or con- 
veying aw.iy any human body, or the remains thereof, such person or per- 
sons so offending, on conviction of such ortience, in the Supreme Judicial 
Court of this Comnionvvealih, shall be adjudged guilty of felony, and shall be 
punished by solitary imprisonment lor a term not exceeding ten days, and by 
confinement afferwards to hard labor for a term not exceeding one year, or 
shall be punished by a fine not exceeding two thousand dollars, to enure to 
the benefit of the Commonwealth, and by imprisonment in the common jail 
for a teirii not exceeding two years, at the discretion of the Court, according 
to the nature and aggravation of the otTence. 

Sec. 2 Be it further enacted. That if any person shall be in any way, 
either before or after the fact, accessory (o the commission by any person or 
persons of the oHence described in the first section of this act, such person or 
persons shall be adjudged and taken to be principals, and shall be, on con- 
viction in the Court aforesaid, subject to the same punishments and forfei- 
tures as are in said first section provided. 

[Sections 3, 4 and 5, making piovisions for the study of Anatomy, (which 
have been superseded by the last act,) are here omitted.] 

Sec 6. Be it further enacted, Tliat the act passed March 2d, 1815, en- 
titled ' An act to protect the Sepulchres pf the Dead,' and also all other acts 



23 

Or parts of acts contravening the provision's of this act, be and the same hereby 
are repealed. 

Approved by the Governor, Feb. 28, 1831. 

By this last statute the offence is declared to be felony ; 
and the penalty is greatly enhanced. 

C'onsiderable dissatisfaction, however, prevailed in many 
parts of the state, with the provisions of the third section, 
legalizing the study of anatomy. The importance of a 
knowledge of the science of anatomy is not denied ; hut it 
can, and ought to be promoted without aggravating the 
feelings of a single individual. This Act, combined with 
the strong feeling of the public against such offences, 
seemed to afford a sufficient protection. Recently, how- 
ever, a case of robbery of the grave has occurred at Great 
Falls and Dover, N. H., which created great indignation in 
the public mind. 

The object, unquestionably, of these laws is the protec- 
tion of Burying Grounds in (nil. This object is indicated 
by the title of the Act, ' to ])rotect the sepulchres of the 
Dead.' The Rail Road Corporation have attempted to 
evade this law by constructing the road over the dead. It 
seemed that they did not claim a right to remove the dead ; 
but to dig down within a foot or two of their remains, antl 
at that depth, to build a railroad with stone, timber and 
iron over them ! In substance, what is the difference 
between a right to remove, and a right to do thus much ? 
What is the difference, except that the one is worse than 
the other ? Can such an absurd construction be put on any 
law ? If not against the letter, it certainly offends against 
the spirit of the law, for its object is to protect the dead in 
their graves. If stich a construction can be put upon the 
law, then the same object -may be effected in one way 
which it would be illegal to do in anotiier. 

Does then, their charter, in effect, repeal the statute? 
I think not. That Statute is a general law — a law defining 
certain acts as criminal offences. Tlie a<-t of Incorpora- 
tion, is a special, — a private law. Could it have been 
intended to re|)eal the standing law on the subject of pro- 
tecting the sepulchres of the Dead ? It contains no words 
of repeal. It has no allusion to it, not the most distant. It 
was not the intention of the Legislatme. There is nothing 
in the Act to show any such intention on their part. Tlie 
right to disturb a Bm-ying Ground was not agitated at the 
time of passing the Act ; and there is no reason to be!iev;e 



S4 

that it ever entered the mind of a single individual in that 
assembly. Nothing was farther from their design. It 
confers on the corporation only certain rights over private 
property ; and not an exemption from the criminal laws of 
the land. An Act creating such exemptions would be 
clearly unconstitutional. Was it the serious intention of 
the Legislature to exempt this company (a certain number 
of individuals) from the operation of the criminal laws of 
the commonwealth ? But when two Acts conflict with each 
other, which shall prevail ? In most cases, undoubtedly, 
the latest, but certainly, under some restrictions. Such 
construction ought to lie confined to cases where both 
Acts relate to the same subject matter ; unless it can be 
clearly gathered from the latter Act that it was the inten- 
tion of the Legislature to repeal another Act on another 
subject. In such conflicting cases, courts have generally 
presumed that the Legislature intended to repeal the former 
law so far as it was inconsistent with the more recent. 
This intention, however, is often merely a fiction, — inferred 
from the necessity of the case, and should never be resorted 
to, except in case of necessity. It seems convenient for 
courts of law to resort to some such rule in order to recon- 
cile conflicting statutes. But if there is no_ limit to it, if 
such a construction can be extended to cases like this, then 
is there no stability in the laws, no security for existing 
rights; the most beneficial objects may be defeated; and 
injuries inflicted, the most distant from the intentions of the 
Legislature. Such a latitudinarian construction would be 
unsafe and dangerous ; and would introduce confusion into 
the system. 

There are always limitations and exceptions to general 
charters. Several cases havfi already been decided in 
which such limitations have been recognized. 

After the case in this town occurred, the Legislature 
passed the following Statute for the better security of the 
cemeteries of the Dead. 

AN ACT in mldition to ' An Act moi-e effectually to protect the Sepulchres 
of the Dead, and to Legalize the Study ot" Anatomy in certain cases.' 
Sec. I. £e it enacted bu the Senate and House of Representatives, in 
General Court assembled, and by the authority of the same, Tiiat hereafter 
it shall not !>e lawful to locate or construct any railroad, canal, turnpike, 
highway, ^owti way or punlic easement whatsoever, in, upon, or thi-outjh any 
enclosure used or appropriated for the hurial of the dead, v\-iiliout authoiity 
to that effect, specially tcranted by law ; or the consent of the inlialjitants of 
the town where such enclosure is situated ; and any person offeniling against 
the- foregoing provision, shall he subject to indictment, in any Court compe- 
tent to try the same, and to imprisonment for a term not exceeding one year, 



25 

or a fine, lo the use of the Commonwealth, not exceeding two thousand dol- 
lars, oi» both of said punishments, at the discretion of the Court trying the 
same, and according to the nature and aggravation of the otFcnce. Provided, 
nevertheless. That this enactment shall not apply to any such railroad, or 
other public easement already located. 

Sec. 2. Be it further enacted. That if any person shall wilfully destroy, 
mutilate, deface, injure or remove any tomb, monument, grave-stone, or other 
structure placed in memory of the dead ; or any fence, railing, or other curb 
for the protection or ornament of any tomb, monument, grave-stone, or other 
structure atbresaid, or of any enclosure for the burial of the dead; or shall 
wilfully destroy, remove, cut, break or injure any tree or shrub, placed for 
ornament within the limits of any such enclosure; such person so offunding, 
shall forfeit and pay, to the use of the Commonwealth, a sum not less than 
ten, nor more tfian five hundred dollars, to be recovered by indictment in any 
Court competent to try the same. 

Sec. 3. Be it further enacted. That it shall be lawful for the Board of 
Health, Overseers of the Poor, and Selectmen of any town in this Common- 
wealth, and for the directors of the House of Industry, Board of Health, 
Overseers of the Poor, or Mayor and Aldermen of the City of Boston, to sur- 
render the dead bodies of such persons as it may be required to bury at the 
public expense, to any regular Physician, duly licensed according to the laws 
of this Commonwealth, to be by said Physician used for the advancement of 
Anatomical Science; preference being always given to the Medical Schools 
that now are, or hereafter may be, by law established in this Commonwealth, 
during such portions of the year as such schools, or either of them may re- 
qure subjects for the instruction of Medical Students. Provided, nevertheless. 
That no such dead body shall in any case be so surrendered, if within twenty- 
four hours from the time of its death, any person claiming to be kin or friend 
to the deceased, shall require to have said body interred; or if such dead 
body shall be the remains of a stranger, or traveller, who suddenly died be- 
fore making known who or whence he was ; but said dead body shall be in- 
terred, and when so interred, any person disinterring the same, for purposes 
of dissection, or being accessory thereto, shall be liable to the punishment 
provided in the first section of the Act to which this is an addition. Jind pro- 
vided further. That every Physician so receiving any such dead body, before 
it shall be lawful to deliver the same to him, shall in such case give to the 
Mayor and Aldermen of the city of Boston, or to the Selectmen of any town 
of this Commonwealth, as the case may require, good and sutlicient bond, 
that each body so by him received, shall be used only tor the promotion of 
Anatomical science, and that it shall be used for such puri)ose within this 
Commonwealth only, and so as in no event to outrage the public feeling; and 
that, after having been so used, the remains thereof shall be decently inter- 
red. 

Sec. 4. Be it further enacted. That the body of no person, requesting, 
during his or her last sickness, to be interred, shall be surrendered under the 
provisions of tho third section of this Act. 

Sec. 5. Be it further enacted. That the third section of the Act to which 
this is in addition, is hereby repealed. 

Approved by the Governor, April 1, 1S34. 



REMARKS ON CORPORATE POWERS. 

' Powpr without right is the most odious and detestable object that can be oft'ored to the 
human imagination.' — Lord Chatham. 

Many citizens are dissatisfied with the powers granted in the Act, 
establishing this Corporation. They deem such grants a violation, or 
at least, a departure from the original principles of the Constitution, 

3 



•26 

as understood by our forefathers. Tliere is some reason for complaint, 
not merely against this grant, hut all similar grants. 

This is deemed a suitable occasion on which to make a few remarks 
on the powers of Corporations, j)articularly those given in the charter 
of the Boston and Providence Rail Road Corporation. The rights con- 
ferred in this Act, over private property, which is deemed necessary for 
the construction of the road, appear to be unrestricted and indefinite. 

Tliat part of the Act, which authorises them to take private property, 
is as follows : 'And the said Corj»oraiion are hereby authorised and 
empowered to locate, construct, and finally complete a Rail Road, 
beginning at, or near the city of Boston, and thence to the line of this 
Commonwealth, in Pawtucket or Seekonk, in the direction to Provi- 
dence, in the state of Rhode Island, in such manner and form as they 
shall deem most expedient. And for this purpose, the said corporation 
are authorized to lay out their road at least lour rods wide through 
the whole length ; and for tlie purpose of cuttings, embankments, and 
obtaining stone and gravel, may take as much more land as may be 
necessary for the proper construction and security of said road. Pro- 
vided, however, that all damages that may be occasioned to any person 
or corporation, by the taking of such land or materials for the purposes 
aforesaid, shall be paid for, by said Corporation, in the manner herein- 
after provided.' 

Does the Constitution clothe the Legislature with authority, to grant 
private property to or for the benefit oi' a private corporation ? For t'lis 
is the real question at issue. 

The only claim of a right to take private property at all without the 
consent of the owner, (if we go back to original principles,) seems to 
be founded on an article in the Bill of Rights, which implies that 
private property may be taken for public uses. It indirectly confers 
this riglit. Art. 10. 'No j)art of the property of an individual can, with 
justice, be taken from him, or applied to public uses, without his own 
consent, or that of the Representative body of the j)eople.' 'And 
whenever the^K6/ic exigencies require, that the property of any indi- 
vidual should be a|)propriated to public uses, he shall receive a rea- 
sonable compensation therefor.' 

This seems strongly to imply, that private property can be taken 
only for public uses. There is certainly no express authority for the 
contrary. Even tiiis is reluctantly granted by the constitution, and 
with evident caution. Tiie right to take it is restricted to one object, 
^public M5e.' Indeed, the omission in the Constitution is equivalent 
to an express proliibition to take it for any other pur()ose. The 
' public exigency,' not public convenience, or public good, is made 
the criterion in such cases, not the loose and uncertain prospects of 
remote and consequential benefits. Whence, then, do the Legisla- 
ture derive their authority to take [)rivate property at wholesale, and 
give it to a private corporation ? It can no where be found in the Con- 
stitution, the source from which they derive all their authority — even 
their existence — and which is to control them in the exercise of all 
their powers. Do they derive it from their own inherent right ? Cer- 
tainly not. We have here no 'omnipotent parliaments' — no Su])reme 
Legislative authorities. Our Constitutions are the supreme and fun- 
damental laws of the land. All Legislative powers are subordinate 
and derivative. Any i)ower exercised beyond the spliere of the 
Constitution, is a usurpation on the sovereignty of the people. 

But it will be said, i)erhaps, that the 'public good' requires that 



27 

grants of tliis kind should be made. It is a sufficient answer to this, 
tliat that is not tlie test ; that the Constitution does not authorize them 
for that purpose. It may also be said, tliat this charter was, in fact, 
made for llie benefit of the public, and not of individuals ; that it is a 
public g:rant. It is, to all intents and piu'poses, a privale corporation. 
The <;rant is made to individuals, and for individual benetit. It is 
owned by individuals, and is not bestowed direcily on the public. But 
the ' public jjiood' will be promoted by the establishment of such a road. 
Adnnt it. But this does not diUerniiue tlie character of the grant, and 
render it constitutional. The pid)lic good is only incidental, tlie indirect, 
and perhaps, remote consequence — and is not the direct object of the 
Act, as the Constitution rc(piircs it should be. It will be |M'omoied 
only in subservience to tlie interests of the Corporation. Their first, 
j)aramount, in fact, only object will be to secure the interests of the 
individuals composing the company ; and if the public derive any 
advantage from the establishment, it will be only because it neces- 
sarily results from the means used to promote their own interests. Is 
not such a grant, in substance, and in (brm too, a private grant ^ Is it 
conformable to the ispirit of the Constitution? Is this the 'public 
exigency,' contem])latcd by the Bill of Rights? 

This principle of j9«6/;c o-oo(/ is altoget Ik r a loose, indefinite and 
dangerous rule of action on this subject. It proves too mucdi. If this 
])riuciple be once admitted and carried to its full extent, its <:onse- 
quences will be seen. On this principle almost any violation of 
])rivate rights might be justified. It woidd place private property 
wholly at the mercy of the Legislature for the tinje being. By a 
parity of reasoning, they miglit take a water privilege fi<Hii one man, 
(who, in their opinion, did not use it to the best advantage) and grant 
it to another man, to be used for a difl^erent |)urpose, because in their 
estimation, it would be more conducive to the ' |)ublic good ! ' Or, 
they might take a privilege from a private citizen, which had never 
been used at all, and grant it to a corporation, to be used for an 
establishment for the maiiufiicture of Rail Road Iron! The public 
g-oor/ might be j)rornoled by the exchange! And so the |)ublic good 
migiit be promoted by any other private establishment. Where would 
the application of such a principle end? No where but in the utter 
annihilation of individual rights? 

It may be said, that grants, in some respects similar, have been liere- 
tofore made, and have been indirectly recognised by the courts of law, 
and by the |)resumed accjuiescence of the {)eople ; and that this lias thus 
become a settled construction of that jjart of the Constitution. But, if 
there is no express, or necessarilj' implied authority, in the Constitu- 
tion, for such grants — then no lapse of time, no judicial construction, 
no presumed acquiescence of the [leople, can ever confer the power, 
or render its exercise Constitutional. Jf not so, then tlie Constitution 
may be altered or amended in a mode ditferent from that prescribed in 
the Instrument itself, and without the express will of the people. 

Nothing is to be presumed against the Constitution. The funda- 
mental law of the state nnist ever remain the same until altered by the 
power which created it ; and no power but that of the people in their 
sovereign capa(;ity can add to, or subtract from it. No violation of the 
constitution can be sanctioned by time, or form a precedent justifying 
subsequent violations. If otherwise, it would recognize a principle 
subversive of its own existence. 

No alteration can be made in that instrument, without a vote of the 



28 

people expressed through the ballot-box. Nothing short of this can 
confer a power which is not given, or take away one which is given. 
Any other rule of construction would be dangerous to the rights and 
liberties of American citizens. In England, (to our shame be it said,) 
the rights of private property are far better jirotected than in this 
country. Let the people, then, look to this subject. I merely wish, 
by these remarks, to call their attention to it. A principle has been 
adopted, which, if followed up to its full extent, will be a dangerous — ^ 
perlia]js, fatal encroaclinient on private rights. 'Freedom,' says Mr. 
Fox, ' according to my conception of it, consists in the safe and sacred 
possession of a man's properly, govtrned by laivs defined and certain; 
with many personal privileges, natural, civil and religious, which he 
cannot surrender without ruin to himself, and of which to be deprived 
by any other power is despotism.' We wish to see the original prin- 
ciples of the Constitution restored in their purity and vigor. If these 
remarks and suggestions, which have been made for the consideration 
of those who have an interest in the subject, be well founded, then it 
is the duty of the people to insist that such grants shall be restricted, 
in futiu'e, to their true objects, that is, to ' public uses.' 

Corporate powers iiave been extended too far in this Common- 
wealth ; tliey have been gradually gaining ground, for a great number 
of years, until they have become dangerous to the rights of the people. 
Too much influence is accumulating in the hands of a few. The 
combined funds and influence of such bodies of men give them great 
advantage over individual rights; and they do not hesitate to use it. 
Give nn'U, united in the pursuit of interest, (that object which, of all 
others — at least in the great majority of mankind — most highly stimu- 
lates human [lassion,) give such men extra powers and privileges, and 
they will generally push them to their full extent. It is time that some 
liuiiiations or restrictions were imposed u|)on them. The accuuuila- 
tion of power in particular bodies of men is contrary to the spirit of 
our insliiinioMS. It militates against that erpiality of rights which was 
intended to be secured by the Constitution. Private rights have but 
little chance of sucress, when brought into conflict with such combi- 
nations of wealth, privileges, and personal influence, organized, and 
armed with legal power. Let a people, then, jealous of individual 
rights and lilterties, look to this subject in season. 

The powers conferred in this charter seem to operate, with pecu- 
liar hardship, on tlie Agricidturists— that portion of the community 
which has been given up, of late years, as the spoils and prey of some 
other portions, who are not contented to gain their fortunes l)y the 
gradual profits of industrious labor. The Farming interest should be 
protected. It has long enough been sacrificed to the interests of the 
mere trader^ the stock-jobber and the speculator. I wish to see all in- 
terests equally protected and encouraged. No one should besacrificed 
to promote the others. 

Farmers are the ' bone, muscle, and sinews' of our Republic. They 
are the hopes of the country. On them, in the last resort, depends 
the maintenance of our Constitiuion. Cities may become corrupt, 
may be suiyected to the influence of demagogues, or bought and sold 
in the political market by the power of wealth ; but the yeomanry of 
the land have a better prospect of escaping the corruptions of vice, 
and servile dependence on tnen. On their virtue, independence and 
patriotism will depend, under Providence, the stability of our free and 
glorious institutions. 



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